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Robin v. Allstate Indemnity Co.12/8/2004
is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.
Fitch v. Vintage Petroleum, Inc., 94-346, p. 11 (La.App. 3 Cir. 11/2/94), 652 So.2d 998, 1003 (quoting Veazey v. State Farm Mut. Auto. Ins., 587 So.2d 5, 7 (La.App. 3 Cir. 1991)).
Dr. Womack performed several calculations utilizing different factors in determining Joe's loss of earning capacity. All calculations used a 3.5% growth rate due to inflation and a 4.4% factor for interest that could be earned on any sum of money that might be awarded to Joe. However, different numbers were used concerning the number of years that Joe might have continued to work depending on whether statistics for work-life expectancy were used, 25.92 years, or whether Joe worked until he could retire with social security , 32.95 years. Different numbers were also used concerning Joe's annual earnings. Hebert testified that Joe's earning capacity was higher than his actual earnings which would be $32,000 as opposed to his actual earnings of $27,040 based on full-time employment at $13 an hour.
Using Joe's actual earnings but projecting it out for 32.95 years, as the number of years until Joe could collect social security , resulted in a loss of earning capacity for Joe of $915,521.
We also observe that this calculation took into consideration that Joe could earn wages returning to work part-time at a minimum wage job . Due to his injury , Joe can now only work at light-duty employment. Hebert testified that the jobs that are now available to Joe are in an industry that does not hire full-time employees because it does not want to pay for benefits. Hebert also stated that the hardest people to put back to work are those with back injuries because employers are reluctant to hire them. We find that the jury's award for loss of future earnings was reasonably based on the evidence in the record.
For the reasons expressed in this opinion, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Allstate Indemnity Company.
AFFIRMED.
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